BY MAXIMILIAN VISKI-HANKA —
“The context in which [science and technology] issues arise varies widely, but generally they share one characteristic: They challenge the ability of judges and juries to comprehend the issues—and the evidence—and to deal with them in informed and effective ways. As a result, they tend to complicate the litigation, increase expense and delay, and jeopardize the quality of judicial and jury decision making.”
—Judge William Schwarzer of the U.S. District Court for the Northern District of Florida, cited in Peter Lee, Patent Law and the Two Cultures, 120 Yale L.J. 2, 9 (2010).
Ask law students around the country what they think about math and science and most of them will answer with some sort of variation of, “That is why I went to law school in the first place, so I wouldn’t have to deal with either.” This is not to say that every law student shares this sentiment, but those who do like the sciences are becoming increasingly rare. Moreover, this aversion is not just prevalent within most law schools, but also among lawyers and judges nationwide.
Recently, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit authored an opinion, Jackson v. Pollion, touching on the issue of science- and math-averse lawyers and judges, and how this aversion can be a significant detriment to the legal practice. In a short amount of time, the opinion has gained significant popularity. The crux of the case centered on an Illinois inmate who sued the prison’s nurse practitioner and correctional counselor for failing to give him his prescribed medication for his hypertension. What drew Judge Posner’s attention to the case was not its legal merit, but the fact that the inmate’s counsel, the magistrate judge, and the district judge did not reference any medical literature and “skipped all medical questions” of malfeasance on the part of the defendants. Additionally, Judge Posner commented on the failure of both the judges and lawyers to investigate the underlying medical facts. Judge Posner stated that parties cannot “venture an opinion on the ‘objective seriousness’” of the claim without any medical merit or discussion. Although the lower court came to the right conclusion, it was not because of its scientific investigation or the scientific investigation of counsel. Consequently, such aversion and dislike of math and science could have harmed the plaintiff’s case significantly.
The fear of science and math in the legal profession is not just limited to this particular case with these particular judges and attorneys. Judge Posner’s opinion highlights how many in the legal practice feel. For example, Supreme Court Justice Antonin Scalia and Former Chief Justice William Rehnquist both have stated their distaste for science and math.
Moreover, even the concurring opinion in Jackson states, “many lawyers decided against medical school because of lack of interest in the clinical aspects of medicine or a deeper interest in the less scientific aspects of law. I was one of those who chose law as opposed to medicine.” Some members of the community have found that law and science require completely different types of thinking and analysis, and that these differences make lawyers uncomfortable. For example, by relying heavily on existing precedent, the legal field can look to prior occurrences and ruling, whereas science is not bound by such standards.
Additionally, Peter Lee, in his article Patent Law and the Two Cultures, stated that many of the problems exhibited by law students, lawyers, and judges, may be caused by their lack of educational specialization. According to Mr. Lee, only ten percent of law students have undergraduate degrees in math, science, or engineering. Mr. Lee further argued that a lack of educational expertise can cause judicial disinterest. Take a look at an exchange in the oral argument of Massachusetts v. EPA, a case dealing with global warming:
Mr. Milkey: Respectfully, Your Honor, it is not the stratosphere. It’s the troposphere.
Justice Scalia: Troposphere, whatever. I told you before I’m not a scientist.
Justice Scalia: That’s why I don’t want to have to deal with global warming to tell you the truth.
As litigation becomes more complex, it becomes even more important for all of those involved in the practice of law to overcome their aversion to the “STEM” (Science, Technology, and Mathematics) fields. Many have offered advice on how to rectify the issue, rather than simply ignore the importance of STEM fields. Judge Posner, for example, has embraced technology, often using the Internet to help him develop a clear view of all arguments and circumstances surrounding a case. He also has suggested that judges should require neutral experts to inform the court and jury on certain complex issues, rather than rely on expert witnesses proffered by the parties themselves. Others, like Daniel Katz, an Associate Professor of Law at Michigan State College of Law, have even suggested transforming the law school curriculum to include mathematics in its classes and exams. Such increased knowledge and comfort with the STEM fields are certain to make litigation less complex, less costly, and more efficient. Most importantly, increased knowledge and comfort will lead to more advanced and effective practice of law, and situations like the one in Jackson will be avoided.
Though Judge Schwarzer only spoke of judges and juries, the same may be said about lawyers and law students. Consequently, something must be done to dispel this way of thinking. The legal field is one of the few professions where its practitioners are expected to be renaissance men and women: people who know a little of everything. As the world evolves, so too must the knowledge of lawyers, judges, and students. We are living in a complex, mathematical, and technological age, and the practice of law must adapt to such changes—we as a profession can no longer be afraid of something simply because its way of thinking intimidates us. As evidenced by Judge Posner’s opinion, the fate of our clients and arguments depend on it.